Against ATCO: ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4

It is often said that administrative bodies have no inherent jurisdiction, only those powers granted by the legislature.[1]

According to the majority of the Supreme Court of Canada, per Bastarache J. in the ATCO case, those powers have “two sources”: “(1) express grant by statute (express power) and (2) common law, under the doctrine of necessary deduction (implied power)”.[2] Bastarache J.’s reference to the common law is somewhat curious and something of an unnecessary distraction, as implicit powers are not free-standing common law concepts but must be tied to statutory authority. Unfortunately, this is only one difficulty with the ATCO framework.

Express powers create no great difficulty in principle. If an administrative tribunal, say, has the authority to award costs against a losing party, then it can award costs against a losing party. If a regulator has the power to set a rate for a particular service, it can set a rate for a particular service. “Express” here does not require literalism. In Chrysler Canada Ltd. v. Canada (Competition Tribunal),[3] the Supreme Court considered the Tribunal’s jurisdiction to convict a party for contempt of the Tribunal. The argument was that Parliament did not grant the Tribunal such a power expressly. But Parliament had given the Tribunal the powers of a superior court, which include the power to hold someone in contempt of court:

The legislative scheme creates a need for the Tribunal to address the enforcement of its orders.  Section 8 CTA, as was expounded above, sets out the jurisdiction and powers of the Tribunal in general terms, and its normal meaning is broad and clear.  It is an express statement that the powers of the Tribunal include the contempt powers of a superior court for the enforcement of its orders.[4] 

Much greater difficulty has been caused over the years by so-called implied powers, those which “may fairly be regarded as incidental to or consequential upon, those things which the legislature has authorized”. [5] According to the Supreme Court of Canada, implied powers exist by inference from express powers: “are included in the powers conferred by the enabling statute not only those expressly set out therein, but also, by inference, all those which are in fact necessary to achieve the objective of the legislative scheme”.[6] Notice the slippage here between the old formulation – fairly incidental – and the new – necessary.

Quite how tightly an implied power must be tethered to statute is uncertain, but it seems that the ‘necessity test’ in ATCO creates too high a threshold. Consider the UK Supreme Court decision in R (New London College) v Home Secretary.^[7] For Lord Sumption, the Home Secretary’s authority to change her guidance on immigration sponsorship applications by educational institutions flowed from her “statutory power . . . to administer the system of immigration control,” which “must necessarily extend to a range of ancillary and incidental administrative powers not expressly spelt out. . . .”^[8] For Lord Carnwath, an implicit power must be “reasonably incidental” to an express statutory power;^[9] here, it was an “adjunct” to the “the specific function of providing for entry for study.”^[10] These statements of the test sound in reasonableness rather than in necessity.

The Supreme Court endorsed a five-factor test for the recognition of implied powers in the ATCO case :

[when] the jurisdiction sought is necessary to accomplish the objectives of the legislative scheme and is essential to the Board fulfilling its mandate;

[when] the enabling act fails to explicitly grant the power to accomplish the legislative objective;

[when] the mandate of the Board is sufficiently broad to suggest a legislative intention to implicitly confer jurisdiction;

[when] the jurisdiction sought must not be one which the Board has dealt with through use of expressly granted powers, thereby showing an absence of necessity; and

[when] the Legislature did not address its mind to the issue and decide against conferring the power upon the Board.[11]

With respect, these factors are rather unhelpful.

The first states a premise which must evidently be satisfied in order for the power to be recognized. It has always been the case that the power in issue must be useful in some way to the achievement of an objective. Furthermore, as mentioned, we can query whether the premise should be cast in terms of necessity and essentiality rather than in terms of whether the power would be reasonably incidental to achieving an objective.

The second factor is redundant: if the power had been explicitly granted there would be no need to analyze whether an implicit power should be recognized.

The third factor is somewhat helpful, though it simply states the commonsense conclusion that the broader the decision-maker’s powers, the more likely they are to include a specific power.

The fourth factor repeats the first factor: evidently, recognizing a power cannot be necessary (per the first factor) if a power to achieve the objective already exists and has been used.

The fifth factor points to legislative history by asking whether the legislature considered – but rejected – granting the power in question. Legislative history of this type has sometimes been treated as relevant but equally there have been warnings about recourse to the legislative record to search for proof that a particular power was considered but rejected: “great care” must be taken in resorting to such legislative history.[12] In my view, the very distinction between express and implied powers is unhelpful. It is not clear that there is a meaningful difference between an “express” and “implied” power. In both instances, the interpreter must read the relevant statutory provisions and determine whether the decision-maker possesses the power in question. Save for exceptionally obvious cases, most interpretations of statutory provisions involve explicatures and implicatures. An explicature involves “explicating meaning directly from the words of an instrument”, whilst an implicature arises where “the exercise moves from being less of an exercise in ascertaining the meaning of express words to being more of an exercise of identifying by inference the additional words that are implied in the provision”.[13] There is no need for a two-step process of identifying express powers and then implied powers. Rather, the interpreter uses the ordinary tools of statutory interpretation – text, context and purpose – to determine whether the claimed power exists.

In a subsequent post, I will explain by reference to some leading cases why the express/implied distinction should be set aside in favour of the application of the ordinary principles of statutory interpretation.

[1] See e.g. A.G. du Qué. and Keable v. P.G. du Can. et al., [1979] 1 SCR 218, at pp. 249-250.

[2] ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), [2006] 1 SCR 140, at para. 38.

[3] [1992] 2 SCR 394.

[4] Ibid., at p. 413. The reader might wonder how such a case made it to the Supreme Court of Canada. For one thing, there was a separate issue of constitutionality relating to vesting a contempt power in an administrative tribunal. For another thing, as McLachlin J explained in her dissent, special considerations historically applied to the granting of contempt powers to ‘inferior courts’ like the Tribunal. The majority, however, did not require a clear reference to contempt which, for McLachlin J, had traditionally been required.

[5] Attorney-General v Great Eastern Railway Co  (1880) 5 App Cas 473, at p. 478.

[6] ATCO, at para. 51.

[7] [2013] 1 WLR 2358 (UKSC) [New London College].

[8] Ibid at para 28. See also R v Criminal Injuries Compensation Board, ex parte Lain, [1967] 2 QB 864 (CA) at 886-87 [ex parte Lain].

[9] New London College, supra note 12 at para 33.

[10] Ibid at para 37.

[11] ATCO, at para.73.

[12] Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 SCR 471, at para. 44.

[13] James Edelman, “Implications” (2022) 96 Australian Law Journal 800, at pp. 802-803.

This content has been updated on June 12, 2023 at 19:00.